Exhibit 10.11
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of January ___, 2006 ("Agreement"), by and
among North American Insurance Leaders, Inc., a Delaware corporation
("Company"), the Xxxxxxxxx Xxxxx Xxxxxx Trust, the Xxxxx X. Xxxxxx Trust, the
Xxxxxxx X. Xxxxxx Trust, the Xxxxx X. Xxxxxx Trust, Xxxxxxx X. de Jonge, the
Xxxxxxxxx Xxxxx de Jonge Trust, Xxxxx X. Xxxxxx, Xxxxxxx Xxxxx Xxxxxx, Xxxx
Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx Xxxxxx, the Xxxxxxxxx/Xxxxxxxxxx Revocable Trust,
the Xxxxxxx X. Xxxxxxxxxx 2005 Irrevocable Trust, the Xxxxxxx X. Xxxxxxxxxx 2005
Irrevocable Trust, the Xxxxxxx X. Xxxxxxxxxx 2005 Irrevocable Trust, E. Miles
Prentice, III and Xxxxxxxx X. Xxxxxxxx, a Corporation (collectively "Initial
Stockholders") and JPMorgan Chase Bank, NA, a national banking association
("Escrow Agent").
WHEREAS, the Company has entered into an Underwriting Agreement, dated
________, 2006 (the "Underwriting Agreement"), with CRT Capital Group, LLC (the
"Underwriter"), pursuant to which, among other matters, the Underwriter has
agreed to purchase 15,625,000 units ("Units") of the Company. Each Unit consists
of one share of the Company's Common Stock, par value $.0001 per share, and one
Warrant, each Warrant to purchase one share of Common Stock, all as more fully
described in the Company's final Prospectus, dated January ___, 2006
("Prospectus") comprising part of the Company's Registration Statement on Form
S-1 (File No. 333-127871) under the Securities Act of 1933, as amended
("Registration Statement"), declared effective on January ___, 2006 ("Effective
Date").
WHEREAS, the Initial Stockholders have agreed as a condition of the sale of
the Units to deposit their shares of Common Stock of the Company, as set forth
opposite their respective names in Exhibit A attached hereto (collectively
"Escrow Shares"), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Stockholders desire that the Escrow
Agent accept the Escrow Shares, in escrow, to be held and disbursed as
hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent. The Company and the Initial Stockholders
hereby appoint the Escrow Agent to act in accordance with and subject to the
terms of this Agreement and the Escrow Agent hereby accepts such appointment and
agrees to act in accordance with and subject to such terms.
2. Deposit of Escrow Shares. On or before the Effective Date, each of the
Initial Stockholders shall deliver to the Escrow Agent certificates representing
his respective Escrow Shares, to be held and disbursed subject to the terms and
conditions of this Agreement. Each Initial Stockholder acknowledges that the
certificate representing his Escrow Shares is legended to reflect the deposit of
such Escrow Shares under this Agreement.
3. Company Call Right. In the event that the Underwriter does not exercise
all or a portion of its over-allotment option, as more fully described in the
Prospectus, the Company will
have a right to purchase up to 585,938 Escrow Shares (the "Call Right"), such
Escrow Shares to be released from escrow to the Company upon exercise of the
Call Right.
4. Disbursement of the Escrow Shares. The Escrow Agent shall hold the
Escrow Shares, except any Escrow Shares released to the Company pursuant to
paragraph 3 hereof until the third anniversary of the Effective Date ("Escrow
Period"), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Initial Stockholder's Escrow Shares to such
Initial Stockholders; provided, however, that if the Escrow Agent is notified by
the Company pursuant to Section 6.7 hereof that the Company is being liquidated
at any time during the Escrow Period, then the Escrow Agent shall promptly
destroy the certificates representing the Escrow Shares; provided further,
however, that if, after the Company consummates a Business Combination (as such
term is defined in the Registration Statement), it (or the surviving entity)
subsequently consummates a liquidation, merger, stock exchange or other similar
transaction which results in all of the stockholder of such entity having the
right to exchange their shares of Common Stock for cash, securities or other
property, then the Escrow Agent will, upon receipt of a certificate, executed by
the Chief Executive Officer or Chief Financial Officer of the Company, in form
reasonably acceptable to the Escrow Agent, that such transaction is then being
consummated, and release the Escrow Shares to the Initial Stockholders upon
consummation of the transaction so that they can similarly participate. The
Escrow Agent shall have no further duties hereunder after the disbursement or
destruction of the Escrow Shares in accordance with this Section 3.
5. Rights of Initial Stockholders in Escrow Shares.
5.1. Voting Rights as a Stockholder. Subject to the terms of the
Insider Letter described in Section 4.4 hereof and except as herein provided,
the Initial Stockholders shall retain all of their rights as stockholders of the
Company during the Escrow Period, including, without limitation, the right to
vote such shares.
5.2. Dividends and Other Distributions in Respect of the Escrow
Shares. During the Escrow Period, all dividends payable in cash with respect to
the Escrow Shares shall be paid to the Initial Stockholders, but all dividends
payable in stock or other non-cash property ("Non-Cash Dividends") shall be
delivered to the Escrow Agent to hold in accordance with the terms hereof. As
used herein, the term "Escrow Shares" shall be deemed to include the Non-Cash
Dividends distributed thereon, if any.
5.3. Restrictions on Transfer. During the Escrow Period, no sale,
transfer or other disposition may be made of any or all of the Escrow Shares,
excluding any Escrow Shares released to the Company pursuant to paragraph 3
hereof, except (i) by gift to a member of Initial Stockholder's immediate family
or to a trust, the beneficiary of which is an Initial Stockholder or a member of
an Initial Stockholder's immediate family, (ii) by virtue of the laws of descent
and distribution upon death of any Initial Stockholder, or (iii) pursuant to a
qualified domestic relations order; provided, however, that such permissive
transfers may be implemented only upon the respective transferee's written
agreement to be bound by the terms and conditions of this Agreement and of the
Insider Letter signed by the Initial Stockholder transferring the Escrow Shares.
During the Escrow Period, the Initial Stockholders shall not pledge or grant a
security interest in the Escrow Shares or grant a security interest in their
rights under this Agreement.
5.4. Insider Letters. Each of the Initial Stockholders has executed a
letter agreement with the Company, dated as indicated on Exhibit A hereto, in
the form filed as an exhibit to the Registration Statement ("Insider Letter"),
respecting the rights and obligations of such Initial Stockholder in certain
events, including but not limited to the liquidation of the Company.
6. Concerning the Escrow Agent.
6.1. Good Faith Reliance. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith and in the exercise of its own best
judgment, and may rely conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent), statement, instrument, report or other
paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) which is believed by the Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced by a
writing delivered to the Escrow Agent signed by the proper party or parties and,
if the duties or rights of the Escrow Agent are affected, unless it shall have
given its prior written consent thereto. The duties and responsibilities of the
Escrow Agent hereunder shall be determined solely by the express provisions of
this Agreement and no other or further duties or responsibilities shall be
implied. The Escrow Agent shall not have any liability under, nor duty to
inquire into the terms and provisions of any agreement or instructions, other
than outlined in the Agreement.
6.2. Indemnification. The Escrow Agent and its directors, officers,
agents and employees shall be indemnified and held harmless by the Company from
and against any reasonable expenses, including reasonable counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any
action, suit or other proceeding involving any claim which in any way, directly
or indirectly, arises out of or relates to this Agreement, the services of the
Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other than
expenses or losses arising from the gross negligence or willful misconduct of
the Escrow Agent. The Escrow Agent may execute any of its powers and perform any
of its duties hereunder directly or through agents or attorneys (and shall be
liable only for the careful selection of any such agent or attorney) and may
consult with counsel, accountants and other skilled persons to be selected and
retained by it. The Escrow Agent shall not be liable for anything done, suffered
or omitted in good faith by it in accordance with the advice or opinion of any
such counsel, accountants or other skilled persons. In the event that the Escrow
Agent shall be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in its opinion,
conflict with any of the provisions of this Agreement, it shall be entitled to
refrain from taking any action and its sole obligation shall be to keep safely
all property held under the terms of this Agreement until it shall be directed
otherwise in writing by all of the other parties hereto or by a final order or
judgment of a court of competent jurisdiction; provided that the Escrow Agent
has attempted to seek clarification from the Company in writing regarding such
uncertainty or ambiguity and such uncertainty or ambiguity continues. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit
or proceeding, the Escrow Agent shall notify the other parties hereto in
writing. In the event of the receipt of such notice, the Escrow Agent, in its
sole discretion, may commence an action in the nature of interpleader in an
appropriate court to determine ownership or disposition of the Escrow Shares or
it may deposit the Escrow Shares with the clerk of any appropriate court or it
may retain the Escrow Shares pending receipt of a final, non-appealable order of
a court having jurisdiction over all of the parties hereto directing to whom and
under what circumstances the Escrow Shares are to be disbursed and delivered.
Anything in this agreement to the contrary notwithstanding, in no event shall
the Escrow Agent be liable for special, indirect or consequential damage of any
kind whatsoever (including but not limited to lost profits), even if the Escrow
Agent has been advised of the likelihood for such loss or damage and regardless
of the form of action. The provisions of this Section 5.2 shall survive in the
event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6
below.
6.3. Compensation. The Escrow Agent shall be entitled to reasonable
compensation from the Company for all services rendered by it hereunder. Annual
fees are $_____, not subject to pro-ration for partial years.
6.4. Further Assurances. From time to time on and after the date
hereof, the Company and the Initial Stockholders shall deliver or cause to be
delivered to the Escrow Agent such further documents and instruments and shall
do or cause to be done such further acts as the Escrow Agent shall reasonably
request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
6.5. Resignation. The Escrow Agent may resign at any time and be
discharged from it duties as escrow agent hereunder by its giving the other
parties hereto written notice and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such time that
the Escrow Agent shall turn over to a successor escrow agent appointed by the
Company, the Escrow Shares held hereunder. If no new escrow agent is so
appointed within the 60 day period following the giving of such notice of
resignation, the Escrow Agent may deposit the Escrow Shares with any court it
reasonably deems appropriate.
6.6. Discharge of Escrow Agent. The Escrow Agent shall resign and be
discharged from its duties as escrow agent hereunder if so requested in writing
at any time by the Company and a majority of the Initial Stockholders, jointly,
provided, however, that such resignation shall become effective only upon
acceptance of appointment by a successor escrow agent as provided in Section
5.5.
6.7. Liability. Notwithstanding anything herein to the contrary, the
Escrow Agent shall not be relieved from liability hereunder for its own gross
negligence or its own willful misconduct.
6.8. Waiver to Claim on Trust Account. The Escrow Agent shall waive
any right, title, interest or claim of any kind in or to any monies to be
deposited and held in the trust account by JPMorgan Chase Bank, NA, as trustee,
for the benefit of the public stockholders of the Company's common stock issued
in the initial public offering.
7. Miscellaneous.
7.1. Governing Law. This Agreement shall for all purposes be deemed to
be made under and shall be construed in accordance with the laws of the State of
New York.
7.2. Third Party Beneficiaries. Each of the Initial Stockholders
hereby acknowledges that the Underwriter is a third party beneficiary of this
Agreement and this Agreement may not be modified or changed without the prior
written consent of the Underwriter.
7.3. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof and, except as
expressly provided herein, may not be changed or modified except by an
instrument in writing signed by the party to be charged.
7.4. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any the meaning or
interpretation thereof.
7.5. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective parties hereto and their legal representatives,
successors and assigns.
7.6. Notices. Any notice or other communication required or which may
be given hereunder shall be in writing and either be delivered personally or be
mailed, certified or registered mail, or by private national courier service,
return receipt requested, postage prepaid, and shall be deemed given when so
delivered personally or, if mailed, two days after the date of mailing, as
follows:
If to the Company, to:
North American Insurance Leaders, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. de Jonge
If to a Stockholder, to his address set forth in Exhibit A.
If to the Escrow Agent, to:
JPMorgan Chase Bank, NA
0 Xxx Xxxx Xxxxx - 00xx Xxxxx
XX, XX 00000
Attn: Xxxxxx Xxxxx
Fax: 000.000.0000
A copy of any notice sent hereunder shall be sent to:
Shearman & Sterling LLP
000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
and:
CRT Capital Group LLC
000 Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: [o]
and:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxxxxxxxx
The parties may change the persons and addresses to which the notices
or other communications are to be sent by giving written notice to any such
change in the manner provided herein for giving notice.
7.7. Liquidation of Company. The Company shall give the Escrow Agent
written notification of the liquidation and dissolution of the Company in the
event that the Company fails to consummate a Business Combination within the
time period(s) specified in the Prospectus.
7.8. Merger of Escrow Agent. Any corporation into which the Escrow
Agent in its individual capacity may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Escrow Agent in its individual capacity shall be a
party, or any corporation to which substantially all the corporate trust
business of the Escrow Agent in its individual capacity may be transferred,
shall be the Escrow Agent under this Agreement without further act.
7.9. Force Majeure. In the event that any party or the Escrow Agent is
unable to perform its obligations under the terms of this Agreement because of
acts of God, strikes, equipment or transmission failure or damage reasonably
beyond its control, or other cause reasonably beyond its control, the Escrow
Agent shall not be liable for damages to the other parties for any damages
resulting from such failure to perform otherwise from such causes. Performance
under this Agreement shall resume when the Escrow Agent is able to perform
substantially.
7.10. Account Opening Information. IMPORTANT INFORMATION ABOUT
PROCEDURES FOR OPENING A NEW ACCOUNT: To help the government fight the funding
of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each
person who opens an account. When an account is opened, the Escrow Agent will
ask for information that will allow it to identify relevant parties.
7.11. Tax Identifications. Upon execution of this agreement, each
party shall provide the Escrow Agent with a fully executed W-8 or W-9 Internal
Revenue Service form, which shall include their Tax Identification Number (TIN)
as assigned by the Internal Revenue Service. All interest or other income earned
under this Agreement shall be allocated and paid as provided herein and reported
by the recipient to the Internal Revenue Service as having been so allocated and
paid.
7.12. Miscellaneous. Receipt, investment and reinvestment of the
Escrow Deposit shall be confirmed by Escrow Agent as soon as practicable by
account statement, and any discrepancies in any such account statement shall be
noted by Parties to Escrow Agent within 30 calendar days after receipt thereof.
Failure to inform Escrow Agent in writing of any discrepancies in any such
account statement within said 30-day period shall conclusively be deemed
confirmation of such account statement in its entirety.
[Signature page to follow.]
WITNESS the execution of this Agreement as of the date first above
written:
INITIAL STOCKHOLDERS:
By:
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Name: Xxxxxxxxx Xxxxx Xxxxxx Trust Name: Xxxx Xxxxxxx Xxxxxx
Title:
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Name: Xxxxx X. Xxxxxx Trust Name: Xxxx Xxxxxxxx Xxxxxx
Title:
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Name: Xxxxxxx X. Xxxxxx Trust Name: Xxxxxxxxx/Xxxxxxxxxx Revocable Trust
Title: Title:
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Name: Xxxxx X. Xxxxxx Trust Name: Xxxxxxx X. Xxxxxxxxxx 2005
Title: Irrevocable Trust
Title:
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Name: Xxxxxxx X. de Jonge Name: Xxxxxxx X. Xxxxxxxxxx 2005
Irrevocable Trust
Title:
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Name: Xxxxxxxxx Xxxxx de Jonge Trust Name: Xxxxxxx X. Xxxxxxxxxx 2005
Title: Irrevocable Trust
Title:
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Name: Xxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxxxx, a Corporation
Title:
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Name: Xxxxxxx Xxxxx Xxxxxx Name: E. Miles Prentice, III
JPMORGAN CHASE BANK, NA
By:
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Name:
Title:
